NCLA urged the Supreme Court to hear Consumers’ Research v. Consumer Product Safety Commission, taking this golden opportunity to overturn the 1935 Humphrey’s Executor v. Federal Trade Commission decision and revamp CPSC’s unconstitutional structure. Under current law, the President supposedly is only allowed to fire CPSC commissioners “for neglect of duty or malfeasance in office,” which insulates them from removal in violation of the “take Care” clause of Article II of the Constitution. To approve CPSC’s structure, the Fifth Circuit below invoked Humphrey’s Executor, which upheld the constitutionality of FTC Commissioners’ similar tenure protections on the flawed theory that the Federal Trade Commission does not exercise executive power.

Humphrey’s must be overruled or confined to its facts. CPSC incorrectly claims that its leadership structure is identical to that of FTC when Humphrey’s Executor was decided. However, Humphrey’s wrongly held that FTC exercised no executive power in 1935, so it should be overruled on that basis. The Constitution vests all executive power in the President, and the ability to remove subordinates for any reason is an essential part of executive power, if the President is to hold officials fully accountable. The divided Fifth Circuit panel in this case thought it was bound by Humphrey’s, but it admitted the decision’s reasoning “‘has not withstood the test of time.’”

And whether or not FTC exercised executive power in 1935, CPSC does so today. Hence, CPSC’s authority structure cannot survive scrutiny even if the Supreme Court refuses to revisit the holding in Humphrey’s. Mere application of the Humphrey’s holding to CPSC should suffice to condemn the latter agency’s current structure. CPSC admits to welding executive power, and its authority falls entirely into that category, with the agency adjudicating administrative cases, recalling products, and initiating lawsuits. The President is fully entitled under the Constitution to remove Commissioners at will, who exercise such executive power.

In October 2024, the Supreme denied certiori in Consumers’ Research v. Consumer Product Safety Commission.